The National Security Consensus on NDAA

The National Security Consensus on NDAA

Bipartisan opposition continues to mount to provisions in the defense authorization bill passed by the House and Senate and currently heading to conference. The provisions would mandate military detention and permit indefinite detention of terrorism suspects including American citizens taken in the U.S. and harden restrictions on the transfer of terror suspects. Recent weeks have seen an outpouring of support from conservatives and progressives, lawyers and security professionals, editorial boards and government officials. Adam Serwer writes, “It’s official: Just about the only people who think the mandatory military detention provisions in the defense spending bill are a good idea are the congressional legislators trying to show everyone how tough on terror they are.” [Mother Jones, 12/6/11]

President Obama, in keeping with past presidents, reaffirms leadership on national security. AP reports, “In a statement, National Security Council spokesman Tommy Vietor renewed the White House threat of a presidential veto of the sweeping $662 billion defense bill that includes the far-reaching policy changes on how to handle suspected terrorists.” Congressional Research Service notes that four out of five of the last presidents have vetoed an NDAA: Carter in 1978, Reagan in 1988; Clinton in 1995; and George W. Bush in 2007. [AP, 12/2/11. Nese F. DeBruyne, Congressional Research Service, 5/3/11]

FBI Director Robert Mueller: “I am writing to express concerns regarding the impact of certain aspects of the current version of Section 1032 of the National Defense Authorization Act for Fiscal Year 2012. Because the proposed legislation applies to certain persons detained in the United States, the legislation may adversely impact our ability to continue ongoing international terrorism investigations before or after arrest, derive intelligence from those investigations, and may raise extraneous issues in any future prosecution of a person covered by Section 1032… We appreciate that Congress has sought to address our concerns in the latest version of the bill, but believe that the legislation as currently drafted remains problematic for the reasons set forth above.” [Robert Mueller, 11/28/11]

CIA Director David Petraeus: AP reports,“Preston Golson, a spokesman for CIA Director David Petraeus, said ‘The director feels that the president should have flexibility in dealing with persons detained for involvement in international terrorism.'” [Preston Golson via AP, 11/29/11]

Director of National Intelligence James Clapper: “Taken together, the various detention provisions, even with the proposed waivers, would introduce unnecessary rigidity at a time when our intelligence, military and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks.” [James Clapper, 11/23/1Pa1]

Secretary of Defense Leon Panetta: The provisions restrain “the Executive Branch’s options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.” And it may “needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.” [Leon Panetta, 11/15/11]

John Brennan, deputy national security advisor for homeland security and counterterrorism and career CIA officer: “In sum, this approach would impose unprecedented restrictions on the ability of experienced professionals to combat terrorism, injecting legal and operational uncertainty into what is already enormously complicated work.” [John Brennan, 9/16/11]

Jeh Johnson, general counsel for the Department of Defense: “The results speak for themselves. Since 9/11 numerous individuals have been convicted of terrorism-related offenses. In the last two years alone we have seen in our federal courts a guilty plea from the man who admitted plotting to bomb the New York subway system, a guilty plea from the man who tried to bomb the commercial aircraft over Detroit on Christmas Day 2009, a life sentence imposed on the individual who attempted to detonate a bomb in Times Square, and a life sentence imposed for the participation in the 1998 bombing of our embassies in Kenya and Tanzania. Going back decades the Department of Justice has successfully prosecuted hundreds of terrorism-related cases.” [Jeh Johnson, 10/18/11]

Lisa Monaco, assistant attorney general for national security at the Department of Justice: “‘[The criminal justice system] has been and continues to be critical to our success.’… Monaco, a panelist at an American Bar Association conference on national security in Washington, expressed concern about the military detention provision included in the National Defense Authorization Act. She said the ability of prosecutors to use as many tools as possible to thwart terror activity is in jeopardy. Any effort to undermine prosecutorial authority, Monaco said, risks ‘injecting uncertainty for our counterterrorism professionals just when those same professionals should be focusing on disrupting threats.'” [Lisa Monaco via Legal Times, 12/1/11]

Retired Military and Counterterrorism Experts

General Joseph P. Hoar, USMC (Ret.), General Charles C. Krulak, USMC (Ret.), General David M. Maddox, USA (Ret.), General William G. T. Tuttle Jr., USA (Ret.), Lieutenant General Robert G. Gard Jr., USA (Ret.), Lieutenant General Charles P. Otstott, USA (Ret.), Lieutenant General Harry E. Soyster (Ret.), Major General John Batiste, USA (Ret.), Major General Paul D. Eaton, USA (Ret.), Major General Eugene Fox, USA (Ret.), Rear Admiral Don Guter, USN (Ret.), Major General William L. Nash, USA (Ret.), Major General Thomas J. Romig, USA (Ret.), Major General Murray G. Sagsveen, USA (Ret.), Major General Walter L. Stewart, Jr., Arng (Ret.), Major General, Antonio ‘Tony’ M. Taguba, USA (Ret.), Brigadier General John Adams, USA (Ret.), Brigadier General David M. Brahms, USMC (Ret.), Brigadier General James Cullen, USA (Ret.), Brigadier General Evelyn P. Foote, USA (Ret.), Brigadier General Gerald E. Galloway, USA (Ret.), Brigadier General Leif H. Hendrickson, USMC (Ret.), Brigadier General David R. Irvine, USA (Ret.), Brigadier General John H. Johns, USA (Ret.), Brigadier General Anthony Verrengia, USAF (Ret.) and Brigadier General Stephen N. Xenakis, USA (Ret.): In a letter calling for support of Senator Udall’s amendment, twenty six retired military leaders write: “There should be no disagreement that legislation which both reduces the options available to our Commander-in-Chief to incapacitate terrorists and violates the rule of law would seriously undermine the safety of the American people. We appreciate that our leaders are constantly striving to make America more secure, but in doing so, we must be careful not to overreact and overreach, resulting in policies that will do more harm than good. At the very least, the current detention provisions merit public debate and should not be agreed to behind closed doors and tucked into legislation as important as our national defense bill” [Generals’ Letter, 11/28/11]

Ali Soufan, the former interrogator who revealed that Khalid Sheikh Mohammed was the 9/11 mastermind, recently discussed the NDAA and the utility of federal courts over military commissions with Harper’s Magazine: “I know both systems well. I’ve been the main witness at several trials held in Guantánamo… From experience, I know that federal courts are often better. Part of the reason for this is that the federal system has been used successfully for decades to prosecute international terrorism cases – ever since President Ronald Reagan gave them that authority in the eighties. Since 9/11, hundreds of terrorists have been successfully convicted in federal courts… Those best suited to judging the venue are the prosecutors building the case and the agents and analysts who collected the evidence and gained the confessions. The proposed measures would unnecessarily tie these people’s hands. The threat never to hold trials for some suspects is similarly a mistake. To give one example of why this would be shortsighted, very few foreign legal systems would permit governments to hand over a detainee in the absence of a trial.” [Ali Soufan, 11/1/11]

Colonel Douglas MacGregor (Ret): “What worries me is that we’ll end up creating categories of people who are then subject to arbitrary arrests. And that’s dangerous, because we don’t know how those categories will be defined or interpreted in the future. All in all, it’s a disaster, and it’s something that should be defeated. … I can tell you that having served in a regular armed forces, people in the regular army and marine corps have no interest in participating in those kinds of events [like responsibility for domestic law enforcement or American troops arresting other Americans]. I’m sure there are some narrow purposes to which the military could be put to good use. I mean, clearly, if you’re dealing with paramilitary drug lords and mafias on your soil, you may need the assistance of the military. But, other than that, I can’t conceive of any sort of circumstances that would justify this legislation. [Douglas MacGregor via Fox Business, 11/28/11]

Major General Paul Eaton (Ret): “[T]he NDAA furthers the current trend of militarization of our judiciary by institutionalizing the Guantánamo Detention Facility and military commissions. This has three serious problems. First, it keeps in place what remains a superb al Qaeda recruiting tool at Guantánamo. Second, it diminishes the brilliant work our civilian law enforcement team is doing. Finally, it raises the status of those who would blow up our aircraft and public places. They are not warriors. They are criminals.” [Paul Eaton, 6/20/11]

Brigadier General David Irvine (Ret): “Tucked into the sizable fiscal 2012 defense bill are stealth provisions that, taken together, represent the most radical change of American counterterrorism policy since 9/11. These policies will not make us safer. They will undermine our national security and make the United States a very different country than the city on the hill that American leaders such as President John F. Kennedy and President Ronald Reagan both exhorted it to be. Thankfully, Senate Majority Leader Harry Reid (D-Nev.) took the courageous and unprecedented step of vowing to block the bill because of these abhorrent provisions. He should be applauded for it… Funding national defense is a priority, but that imperative should not become an excuse to close our doors on the world with major policy shifts that could change the character of the country in ways that are antithetical to our values and our national sense of who we are. Let’s hope that the rest of the Senate follows Reid’s lead in standing up for these values. We should be the land of the free, not the home of the terrified.” [David Irvine, 10/27/11]

Brigadier General David R. Irvine, USA (Ret.); Colonel (Ret.) Stuart A. Herrington, US Army; Colonel (Ret.) Lawrence Wilkerson, US Army; Matthew Alexander; Don Borelli; Richard Clarke; James T. Clemente, FBI SSA (Retired); Mark Fallon; Michael German; Robert McFadden; Malcolm Nance; Joe Navarro; Torin Nelson; Buck Revell; Jack Rice and Ken Robinson: Sixteen former interrogators and intelligence officials write: “As former senior interrogators, interviewers, intelligence officials and law enforcement professionals in the United States military, the Federal Bureau of Investigation, the Central Intelligence Agency, and local law enforcement, we oppose legislation that would require military detention of terrorism suspects. Cutting out law enforcement from domestic and international counter terrorism operations would seriously undermine the ability of professional law enforcement and intelligence officials to conduct interrogations of terrorism suspects and gather actionable intelligence information… Speaking from experience, we can confidently say that forcing law enforcement officials to transfer terrorism suspects into military custody is unnecessary and unwise. Law enforcement and intelligence officials have a proven track record of handling international terrorism cases, and Congress should not undermine their efforts by taking tools out of the toolbox.” [Statement, 2011]
Don Borelli, a 25-year veteran of the Federal Bureau of Investigation, where he was assistant special agent in charge in the New York Joint Terrorism Task Force: “Is Congress about to remove one of the most effective tools in our counterterrorism toolbox? They will if a bill introduced by Arizona Sen. John McCain (R) that is making its way through the Senate is passed. The legislation proposes indefinite military detention for all terrorism suspects, whether they’re picked up in East Africa or East Los Angeles, and essentially removes federal prosecution as a viable option. This is a bad idea.” He explains, “It’s a mistake to think that indefinite military detention makes us safer. For many of the cases in which I was involved, especially the ‘homegrown’ cases, the stigma of indefinite military detention at Guantánamo was a major driver in moving people to commit jihad in the first place. … Using law enforcement as a tool in the U.S. counterterrorism toolbox is not only effective, transparent and legal, it has the added benefit of preserving our reputation as a nation built on the rule of law and basic freedoms afforded to all people.” [Don Borelli, 10/26/11]

Practitioners and Experts from Republican and Democratic Administrations

William Sessions, FBI director in the Reagan and George H.W. Bush administrations, and retired judges Abner Mikva and John J. Gibbons: “Not only would such an effort ignore 200 years of legal precedent, it would fly in the face of common sense.” They explain that, “We need access to proven instruments and methods in our fight against terrorism. Stripping local law enforcement and the FBI of the ability to arrest and gather intelligence from terrorism suspects and limiting our trial options is counterintuitive and could pose a genuine threat to our national security. Furthermore, an expanded mandatory military detention system would lead to yet more protracted litigation, infringe on law enforcement’s ability to fight terrorism on a local and state level, and invite the military to act as law enforcement within the borders of our states.” [Abner Mikva, William Sessions and John Gibbons, 10/7/11]

Matthew Waxman, deputy assistant secretary of defense for detainee affairs in the George W. Bush administration, and John Bellinger III, State Department legal advisor under Condoleezza Rice: “The detainee provisions are apparently intended by their drafters to provide tough counterterrorism powers, but in practice they could have a detrimental impact on U.S. counterterrorism operations. Indeed, while originally drafted by Senate Republicans, these legislative encroachments on the president’s authorities would likely have been as strongly opposed by the Bush administration as by the Obama administration. Any president–Democrat or Republican–would object to legislation that interferes this way with his flexibility in conducting the war against al-Qaeda.” [Matthew Waxman and John Bellinger, 12/5/11]

Cully Stimson, former deputy assistant defense secretary for detainee affairs: “Most of the proposed legislation potentially encroaches on the commander in chief’s executive power under the U.S. Constitution, denies the President needed flexibility” [Cully Stimson, 10/17/11]

Richard Clarke, former White House counterterrorism czar: “The phony problem this proposed law is meant to address is the alleged inability of the criminal justice system to deal with terrorism. The truth is that the U.S. criminal justice system dealt very well with terrorism before Sept. 11 and is doing so again now. Terrorists have been regularly arrested by the FBI, prosecuted in federal courts, found guilty by juries and jailed in federal prisons. The list of such cases goes on for pages. The trials have happened all across the country. The system works.” [Richard Clarke, 11/13/11]

Colonel Lawrence Wilkerson (Ret), State Department chief of staff in the Bush administration: “By limiting the use of the traditional criminal justice system — and, specifically, the unparalleled experience and talent of the FBI and other domestic law enforcement officers — the defense bill could actually weaken our counterterrorism efforts.” [Lawrence Wilkerson, 10/2/11]

Juliette Kayyem, former assistant secretary of homeland security: In response to the alleged Iranian terror plot, she writes: “[A]n irony that cannot be ignored is this: As our strongest law enforcement agency was using investigative techniques, the judicial system and good old fashion rule of law, Congress was at the same exact time considering controversial detainee provisions in the 2012 National Defense Authorization Act that would – yes, the irony is deep – remove civilian courts and law enforcement from most counterterrorism efforts.” [Juliette Kayyem, 10/11/11]

National Journal‘s National Security ‘Insiders': “55 percent of NJ‘s pool of national-security and foreign-policy experts sided with the White House over lawmakers such as Armed Services Chairman Carl Levin, D-Mich., and ranking member John McCain, R-Ariz., who argue the new provision’s requirements merely ‘codify’ existing procedure. They also insist that a waiver in the bill gives the executive branch ultimate control. ‘On this one, the White House is correct,’ one Insider said. ‘Tying the hands of the administration only helps the terrorists. They do not abide by the Geneva Conventions; they deserve no sympathy, much less Miranda rights or the equivalent.'” [National Journal, 12/4/11]

Bipartisan Leaders in Congress

Senator Rand Paul (R-KY): “Rights given up now cannot be expected to be returned. So we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored… [The] legislation would arm the military with the authority to detain indefinitely – without due process or trial – suspected al Qaeda sympathizers, including American citizens apprehended on American soil. I want to repeat that. We are talking about people who are merely suspected of a crime. We are talking about American citizens. If these provisions pass, we could see American citizens being sent to Guantanamo Bay. This should be alarming to everyone because it puts every single American citizen at risk… There is one thing and one thing only protecting innocent Americans from being detained at will by the hands of a too-powerful state: our Constitution and the checks it puts on government power. Should we err and remove some of the most important checks on state power in the name of fighting terrorism, well, then the terrorists will have won.” [Rand Paul, Washington Times, 11/30/11]

Sen. Mark Udall (D-CO): “Our law enforcement, military and intelligence workers have spent more than a decade carefully and collaboratively determining how to work together in the war against terrorism. But these proposed changes would require the military to take on a new responsibility as police, jailors and judges – jobs for which it is not equipped and which it does not want. These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.” [Mark Udall, 11/28/11]

Senators from the Select Committee on Intelligence and the Judiciary Committee: SenatorsDianne Feinstein, Patrick J. Leahy, Mark Udall, Richard J. Durbin, Ron Wyden, John D. Rockefeller IV, Christopher A. Coons, Al Franken, Barbara A. Mikulski, Bill Nelson, Mark R. Warner, Kent Conrad and Sheldon Whitehouse wrote a letter to Senate Majority Leader Reid calling for the detainee provisions to be removed from the bill. The letter reads, in part: “The Executive Branch must have the flexibility to consider various options for handling terrorism cases, including the ability to prosecute terrorists for violations of U.S. law in Federal criminal courts… if these controversial provisions are enacted, the FBI may have to hand over a terrorism suspect captured in the U.S. – like Najibullah Zazi – to the military in the middle of an interrogation, even if the individual is providing useful intelligence to the FBI about an unfolding terrorist plot. In addition, under these sections, a suspected terrorist captured abroad – such as Ahmed Warsame – may have to be kept in military custody, even if potential charges against the suspect are available only in Federal criminal courts and not military commissions… we do not support provisions that would undermine our Nation’s counterterrorism efforts.” [Senators’ Letter, 10/24/11]

Rep. Steny Hoyer, House minority whip: “[T]his bill includes misguided Republican language on detainees, which prohibits their transfer from Guantanamo for any purpose, including trial in Federal court. These trials have proved one of our best resources for bringing terrorists to justice; since the Bush administration, over 400 people have been convicted in Federal court of terrorism-related crimes, including some of the worst of the worst. By depriving us of this option, this language takes away one of the tools in our toolbox in the fight against terrorists. I believe we should not limit the Administration’s ability to bring terrorists to justice. [Steny Hoyer, 5/26/11]